R. v. Aklok, 2020 NUCJ 37

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Aklok, 2020 NUCJ 37 Date: 2020 1002 Docket: 23-20-113; 23-20-115 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: James Logan Aklok ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): G. Wool Counsel (Accused): S. Paddock Location Heard: Iqaluit, Nunavut Date Heard: September 25 and 28, 2020 Matters: Sentencing decision pursuant to Anthony-Cook and Criminal Code of Canada, RSC 1985, c C-46, ss. 266 (x2) and 145 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Contents I. INTRODUCTION .. 3 II. BACKGROUND TO THE TWO SETS OF CRIMINAL CHARGES .. 4 III. THE FACTS .. 5 A. August 2, 2020 . 6 B. August 21, 2020 . 6 IV. THE POSITIONS OF THE PARTIES .. 7 A. The Crown .. 7 B. The Defence . 8 V. MR. AKLOK .. 8 A. Mr. Aklok’s personal circumstances . 9 B. Mr. Aklok’s criminal record . 9 VI. THE SHIFTING FRAMEWORK, PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING .. 10 A. The shifting framework of sentencing . 10 B. The purpose and objectives of sentencing . 11 C. The principles of sentencing . 11 VII. ANALYSIS .. 14 A. Joint submissions must conform to the purpose, objectives, and principles of sentencing 14 B. Problems with the joint submission .. 14 (

i) Intimate partner violence . 14 (ii) The perception of institutional indifference . 16 1 The prosecution .. 16 2 Victim impact statements in Nunavut 17 3 The Crown’s submissions . 18 4 The Defence . 22 5 The irony of Anthony-Cook . 23 6 The “so unhinged” test 24 VIII. CONCLUSION .. 26 I. INTRODUCTION [ 1 ] Earlier this year, gender-based intimate partner violence was addressed in a report released by Pauktuutit Inuit Women of Canada:

Gendered violence against Inuit women is a problem of massive proportions. Women in Nunavut are the victims of violent crime at a rate more than 13 times higher than the rate for women in Canada as a whole. The risk of a women being sexually assaulted in Nunavut is 12 times greater than the provincial/territorial average. In 2016, Nunavut had the highest rate of female victims of police-reported family violence in Canada … [1] [ 2 ] Cases of alcohol-fueled intimate partner violence against Inuit women and girls consistently dominate our Court dockets across the Territory.

Far too often, the same intimate partners in crisis—seemingly trapped in a spiraling cycle of violence—are involved in cases before the Court. [2] [ 3 ] This case represents a perfect storm. It is about the crisis of intimate partner violence in Nunavut, perceptions of institutional indifference, and my disquiet over the role of front-line sentencing judges in the wake of the Supreme Court of Canada decision in R v Anthony-Cook . [3] [ 4 ] On October 2, 2020, I sentenced Mr. Aklok according to the terms of a joint submission [4] which I found troubling.

I imposed the joint recommendation because I was constrained from rejecting it. I advised the parties that I would articulate my concerns in a written decision. This is the decision. II. BACKGROUND TO THE TWO SETS OF CRIMINAL CHARGES [ 5 ] In August 2020, the RCMP charged the offender, James Aklok, with intimate partner violence against his then intimate partner. The first incident happened in Iqaluit on August 2. Mr. Aklok was arrested shortly afterwards and released on bail. Mr. Aklok’s bail required him, among other things, to have no contact with his intimate partner.

This no-contact condition is routinely included in bail releases to try to protect complainants. [ 6 ] Nineteen days later, Mr. Aklok again assaulted his intimate partner. This time, after Mr. Aklok’s arrest, a Justice of the Peace denied Mr. Aklok bail and remanded him into pre-trial custody. [ 7 ] The police charged Mr. Aklok with common assault against his intimate partner for the August 2 incident. [5] The police later charged Mr. Aklok with breaching his no-contact bail condition [6] and for choking, strangling, or suffocating his intimate partner on August 21. [7] [ 8 ] Mr.

Aklok appeared before me in the Nunavut Court of Justice in Iqaluit on September 22, 2020. Mr. Aklok sat alone in the courtroom; his lawyer was on the telephone from Cambridge Bay. Defence Counsel had not arranged for an Iqaluit Legal Aid colleague to attend court with him. [ 9 ] On September 22, Mr. Aklok pleaded guilty to the August 2 assault. However, before he entered his pleas pertaining to the August 21 incident, the Crown amended the second Information.

The Crown had the Court delete the references to choking, strangling, or suffocating and amend the charge from that more serious offence to the lesser offence of common assault. Mr. Aklok then pleaded guilty to common assault and the connected bail breach. [ 10 ] This amendment by the Crown is significant. As we will see momentarily, although Mr. Aklok admitted he choked his victim, the Crown did not refer to that fact as an aggravating factor in sentencing. [ 11 ] Before starting Mr. Aklok’s sentencing hearing, I initiated the following exchange:

THE COURT: What steps have been taken to provide her [the victim] a chance to file a Victim Impact Statement? Mr. WOOL: I’m just reviewing the file for that now, sir. Pardon me, the files. I don’t see that this step has been taken on either file, sir. I think part of the difficulty may have been, Ms. Paddock and I did discuss this matter yesterday, and I learned yesterday that the matters would be resolving, but it doesn’t appear that the step of contacting Ms. [edited] for a Victim Impact Statement has been taken. There is contact information within the file.

I expect the Court will want to put this to a later date to resolve the matter. [8] [ 12 ] After discussion with counsel, I adjourned Mr. Aklok’s sentencing hearing to September 25 to give the Crown an opportunity to contact the victim. We resumed Mr. Aklok’s sentencing hearing on September 25. The Crown told me that Mr. Aklok’s victim had declined to provide a Victim Impact Statement. We started the sentencing hearing but reached another roadblock at the end of the Crown’s submissions when I again adjourned the hearing, for reasons to follow, until September 28. III.

THE FACTS [ 13 ] I turn now to the facts of the case. On September 28 following a common practice, the Crown read into the record only a brief set of the facts summarised by the police, just enough information to ground the charges. Given the violence exhibited here, this may have been an appropriate case for the Crown to read the victim’s own words from her statement into the record. A. August 2, 2020 [ 14 ] The Crown told me that the victim contacted the RCMP on August 2 to report that she had been assaulted by her boyfriend. The police went to the residence. The victim told the police that she had told Mr.

Aklok that she was going out to give some money to her mother. Mr. Aklok got mad. She went through the front door to put her shoes on. Mr. Aklok began holding her to stop her from leaving. He punched her. She was then in the living room where he head-butted her. He put her on the floor where he started banging her head. She did not know how many times he did that to her. He pulled her hair. He kicked her twice on her back. He banged her head some more. He slapped her. She told him she was leaving to take money to her mother.

He then got up and left the house. [9] [ 15 ] After the Crown had finished, I asked him what time this incident had happened, and he told me around 9:42 p.m. When I asked whether alcohol was involved, he checked the file and said there was no indication of alcohol noted in the file. At this point, Mr. Aklok unexpectedly said that yes, he had been drinking that night. [10] [ 16 ] Defence Counsel admitted the facts as alleged by the prosecution. B. August 21, 2020 [ 17 ] The Crown then read the August 21 allegations into the record.

The police received “several” calls from the same victim around 1 a.m. reporting that she had fled her home and was hiding near a black truck beside the house. The victim told the police dispatcher that Mr. Aklok was intoxicated and that he had choked her. She had to “sweet talk him” [11] to get him to stop. The police arrived and found the victim. The police learned that Mr. Aklok had choked her around her neck and “wouldn’t let her go”. [12] The police observed a red mark near her left eye and swelling around her mouth and lip. She was crying, visibly shaken, and scared. [13] [ 18 ] The police looked for Mr.

Aklok and found him passed out inside the residence. He was intoxicated. The police arrested Mr. Aklok, who began shouting and screaming obscenities. Mr. Aklok was “agitated, aggressive and not making any sense in what he was saying”. [14]

[ 19 ] The Crown tendered into evidence three post-assault photographs of the victim as well as copies of Mr. Aklok’s bail order and criminal record. Mr. Aklok had been subject to a bail condition on August 21 not to have contact with his intimate partner. This bail condition was one of the conditions Mr. Aklok was subject to in his judicial release after the August 2 incident. [ 20 ] Defence Counsel admitted these facts on behalf of Mr. Aklok. IV. THE POSITIONS OF THE PARTIES A. The Crown [ 21 ] The Crown was brief. I repeat the Crown’s short sentencing submission verbatim: [Introduction] … Mr.

Aklok comes before the Court with a record; however, I note that his last entry on the record is 2012. It’s not clear to me who the victims were of the assault in 2012. There’s nothing to suggest that they took place in a domestic context. They’re simply the fact of the assaults. There are a number of other matters going back to 2007, 2003 and 2000. Mr. Aklok does not have a substantial record, however there are a number of previous convictions for assault. I’m not sure what the reason is for the gap in the record, but I’m sure that will be more fully explained. Mr.

Aklok has fairly early guilty pleas in the matter. These matters arise in August. We’re still in September. That is to his --- these matters occurred in a domestic context. Crown takes that into account in the position proposed to the Court as well and that position is that on the first matter, matters arising August 2nd, the period of custody, 15 days; matters arising from August 21st on count 1, 30 days consecutive; on count --- count 2, one day concurrent. The global position that the Crown is proposing is one of 45 days.

The Crown also suggests a period of probation to follow for nine months … [conditions mentioned]. Those are --- the submissions for the Crown. [15] [ 22 ] The Crown could not tell me whether any of Mr. Aklok’s prior convictions for violence involved an intimate partner, so I adjourned the hearing’s completion again, this time to October 2, but first I heard from Defence Counsel and Mr. Aklok. B. The Defence [ 23 ] Defence Counsel told me on September 28 that this was “a joint position”. Mr. Aklok, she said, “feels significant remorse”. [16] Mr. Aklok’s mother was on the telephone.

There is an eight-year gap in his record. Defence Counsel acknowledged the presence of “significant aggravating factors especially with respect to this being a domestic incident”. [17] The victim was “an intimate partner of his at the time, not a long-term partner”. [18] Defence acknowledged that denunciation and deterrence must be the “primary consideration of the Court”. Defence Counsel continued by saying that deterrence is also met by “the stigma from the nature of those proceedings, especially in smaller communities”. [19] She referred me to

section 718.2(

d) and the requirement that I impose the least restrictive sentence on this Indigenous offender. [ 24 ] Neither the Crown nor Defence Counsel referred the Court to any case law to support their joint submission. V. MR. AKLOK [ 25 ] I will now say a few words about the offender. Neither party requested a Pre-Sentence Report, so Defence Counsel was my principal source of information.

07/04/2003 Assault, s. 266 60-day conditional sentence order (CSO), probation 02/02/2007 Sexual assault s. 271 18-month CSO 30/10/2007 Breached CSO Assault s. 266 CSO terminated 1 day in jail 26/06/2012 Assault s. 266 3 months jail, probation 3 years 26/06/2012 Assault s. 266 3 months jail, probation 3 years A. Mr. Aklok’s personal circumstances [ 26 ] Mr. Aklok is a 39-year-old Inuk from Kugluktuk. He has lived in Calgary, where he held various jobs through a temp agency. He struggled to find housing and a full-time job there, but I was told the experience taught him independence.

He spent time in homeless shelters. Despite this experience, he plans to return to Calgary where he believes it will be easier for him to manage “his alcoholism” away from Kugluktuk’s triggers. [20] [ 27 ] Mr. Aklok experienced “significant violence all through his childhood”. His memories include watching his father beat up and choke his mother, leaving her bruised, swollen, and helpless on the floor. Mr. Aklok was eight or nine years old at the time. Mr. Aklok also experienced physical abuse from his father.

He feels “significant remorse” and knows the victim “did not deserve to be treated like that”. [21] He was often “bullied and ostracised at school. [22] [ 28 ] Mr. Aklok addressed the Court. He said his father’s suicide was “a really big thing in my life”. … There was a lot of violence [at home]. There was a lot of drinking. When I did go to school there was a lot of suicide … I just never had self-esteem that I should have had. I was easily giving up … I quit school … I didn’t want to be at home anymore.

I tried so many times to move away … Watching my mom being treated that way growing up, it was shocking to me because I couldn’t do anything about it. I couldn’t talk to anyone about it … It just sort of got pushed aside in my life until I got older, and I wasn’t dealing with it … I’m sorry to my mom, and I’m sorry to [the victim]. My dad had a lengthy history with the court with going to jail and with drinking. [23] B. Mr. Aklok’s criminal record [ 29 ] Criminal records play a significant role in sentencing.

Common sense dictates that a first-time offender who commits a less serious offence will be treated more leniently that a repeat offender who has committed serious violence against his intimate partner. [ 30 ] Mr. Aklok is a repeat offender. He has a criminal record which contains 13 entries between 2000 and 2012. His criminal record contains entries for the following violent offences: [ 31 ] On October 2nd, the Crown reported that the two 2012 assault convictions had, in fact, involved at least one intimate partner. VI. THE SHIFTING FRAMEWORK, PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING A.

The shifting framework of sentencing [ 32 ] Parliament has codified our national sentencing laws in

Part XXIII of the Criminal Code . In the process, Parliament—after study in committee and Parliamentary debate—legislated that the ultimate responsibility for sentencing an offender lies with the trial judge: 606

(1) A court may accept a plea of guilty only if it is satisfied that …

(

b) the accused understands … (iii) that the court is not bound by any agreement made between the accused and the prosecutor… [24] [ 33 ] Up until Anthony-Cook , judges struggled with how to reconcile their ultimate responsibility for the sentences they imposed with the need to respect and implement appropriate joint submissions. As I shall discuss later, the Supreme Court of Canada decided the issue in 2016. B.

The purpose and objectives of sentencing [ 34 ] Parliament set of the purpose and objectives of sentencing in the following terms: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims of the community. [25] [ 35 ] In 2019, Parliament added a further sentencing objective in

section 718.04, which is particularly relevant to this case: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence . [26] (emphasis added) C. The principles of sentencing [ 36 ] I now turn to the principles of sentencing which Parliament has told judges it is their responsibility to apply.

I will refer to the principles in the same order as they appear in the Criminal Code . [ 37 ] First and foremost, punishment must fit the offender and the crime. This is called proportionality, which is enshrined as sentencing’s “fundamental principle”: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [27] [ 38 ] The sentence must also account for the presence of relevant aggravating or mitigating circumstances. [28] Aggravating factors work to increase the sentence. Mitigating factors work to lessen the sentence.

In this case of intimate partner violence, Parliament has

decreed the following factors to be aggravating ones: 718.2 … (a) … (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation … [29] [ 39 ] The sentence must apply the parity principle, which holds that similar offenders ought to receive similar sentences for similar crimes committed in similar circumstances; [30] the principle of judicial restraint, which directs that the sentence must not be unduly harsh or long; [31] and the totality principle, which says the sentence must impose the least restrictive sanction which is appropriate in all the circumstances. [32] [ 40 ] The sentence must also apply the following principle, which pertains to Mr.

Aklok and all Inuit offenders. Sentencing judges are obliged to consider 718.2 … … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [33] [ 41 ] In this context, the sentence must account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit.

These are the Gladue factors articulated by the Supreme Court of Canada in R v Gladue and later reinforced in R v Ipeelee . [34] [ 42 ] In Canada, a sentencing judge is required to conduct an individualised sentencing hearing. Every offender, and every case, is unique. Ranges of sentences [35] are valuable to help the sentencing judge satisfy the parity principle; but no two cases are identical, and they must be reconsidered as the law and society’s understanding of the issue modernise. In my view, sentencing is a front-line judge’s most challenging and difficult responsibility. VII. ANALYSIS A.

Joint submissions must conform to the purpose, objectives, and principles of sentencing [ 43 ] Parliament has not exempted joint submissions from the need to conform to the purpose, objectives, and principles of sentencing. The Supreme Court of Canada in Anthony-Cook placed a clear legal responsibility on counsel, when presenting a joint submission to the court, to justify their recommendation:

… when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission – and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. [36] [ 44 ] In my view, the joint submission I imposed was unduly lenient, and counsel failed to justify their leniency.

For the reasons which follow, I viewed the joint submission as bringing “the administration of justice into disrepute” in Nunavut. [37] B. Problems with the joint submission (

i) Intimate partner violence [ 45 ] First, the joint submission in this case failed adequately to account for or acknowledge the reality of intimate partner violence in Nunavut. [ 46 ] Pauktuutit’s 2020 report bears repeating: Gendered violence against Inuit women is a problem of massive proportions. Women in Nunavut are the victims of violent crime at a rate more than 13 times higher than the rate for women in Canada as a whole. The risk of a women being sexually assaulted in Nunavut is 12 times greater than the provincial/territorial average.

In 2016, Nunavut had the highest rate of female victims of police-reported family violence in Canada … [38] These are cold clinical facts; the lived reality is a nightmare. Sentencing ought to reflect that reality. [ 47 ] There is persuasive legal authority that the frequency or prevalence of crime in a community is not an aggravating factor.

However, sentencing judges are entitled to consider the prevalence of intimate partner violence, along with other factors, when imposing a fit and just sentence. [39] [ 48 ] The violence endured by so many Inuit women forms a necessary backdrop to determining an appropriate judicial sanction in this case. As this Court said earlier this year in R v Iqalukjuaq : Late last year, Parliament turned its attention to the unique position of some Indigenous victims.

Effective 19 September 2019 sentencing judges are required – in the case of intimate partner violence – to “consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims…” The intergenerational effects of colonialism have not only contributed to the staggeringly high rates of Indigenous offending … The impact of colonialism also gave rise to the very same intergenerational effects which have left all Inuit women – and not just intimate partners – in a particularly vulnerable position in society.

In my view, this reality ought to inform the deliberations of a Nunavut sentencing judge when sentencing an offender who has victimised an Inuk woman. [40] This quote, of course, is a reference to s. 718.04 of the Criminal Code . [ 49 ] This approach has been recently affirmed by the Quebec Court of Appeal in R v L.P. [41] In L.P. , the Quebec Court of Appeal increased the sentence imposed by the trial judge in a case of intimate partner violence from a provincial jail term to a federal penitentiary term. [ 50 ] L.P. , of course, is not binding appellate authority in Nunavut.

However, L.P. arose in the context of Nunavik’s Inuit community,

which has close ties to nearby Nunavut communities. The majority in L.P. considered and weighed all the relevant and sometimes competing considerations which must be balanced and weighed when sentencing an Indigenous offender. In my view, the principles articulated in L.P. are persuasive, and they ought to be applied henceforth by sentencing judges in Nunavut. [ 51 ] In Mr.

Aklok’s case, neither the Crown nor Defence Counsel demonstrated how the reality of intimate partner violence was adequately addressed by their lenient joint submission. (ii) The perception of institutional indifference [ 52 ] I turn now to the perception of institutional indifference which arose in this case. First, I will discuss the role victims may play in the sentencing process.

Then I will examine this case in the context of Nunavut’s high rates of intimate partner violence. 1 The prosecution [ 53 ] This prosecution failed to demonstrate an understanding of the social harm inflicted on communities and victims by intimate partner violence, the real harm experienced by Mr. Aklok’s victim, or the role victims have in addressing it. 2 Victim impact statements in Nunavut [ 54 ] In 2015, Parliament enacted Bill C-32, the Canadian Victims Bill of Rights . The purpose of the legislation can be found in the law’s

preamble which states, in part: Whereas crime has a harmful impact on victims and society; Whereas victims of crime and their families deserve to be treated with courtesy, compassion and respect including respect for their dignity; Whereas it is important that victims’ rights be considered throughout the criminal justice system; Whereas victims of crime have rights that are guaranteed by the Canadian Charter of Rights and Freedoms . [42] [ 55 ] Among other things, this legislation established the right of victims of crime to participate in the sentencing process by filing, or reading aloud in court, a victim impact statement. [43] Section 722(1) of the Criminal Code reads: 722 (1) … the court shall consider any statement of a victim prepared in accordance with this

section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as a result of the commission of the offence and the impact of the offence on the victim. [44] [ 56 ] Parliament also mandated an ongoing supervisory role for judges to ensure that this right is respected. Section 722(2) continues: 722

(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection 1 . [45] (emphasis added) [ 57 ] However, more than five years after the Victims Bill of Rights came into effect, the Crown continues regularly to ask this Court to sentence offenders without victims having been informed of their right to be heard.

[ 58 ] As I noted above, I adjourned this case [46] to allow the Crown to contact the victim. This Court requires prosecutors to contact victims regardless of whether the accused has entered an early guilty plea, whether the victim has a telephone, or whether the police have provided contact information for the victim. [47] The police and the prosecution have a statutory duty to establish a protocol ensuring that victims of crime receive early notice of their rights. 3 The Crown’s submissions [ 59 ] The Crown in Mr.

Aklok’s case endorsed a joint submission with no attempt to justify why the parties had decided that Mr.

Aklok merited an extremely lenient sentence or why the presiding judge ought automatically to impose it. [ 60 ] The final report of the National Inquiry into Murdered and Missing Indigenous Women and Girls underscores the importance of this requirement to justify joint submissions: There is a lack of transparency regarding plea negotiations and the exercise of prosecutorial discretion generally, which further contributes to Indigenous peoples’ distrust of the justice system and a sense that Indigenous victims of crime are devalued. [48] [ 61 ] In Mr.

Aklok’s case, the lenient sentencing submission required justification. This justification ought to have included a full appreciation of Mr.

Aklok’s criminal past and a detailed explanation of how the submission conformed to the purpose, objectives , and principles of sentencing in the circumstances of this case. [ 62 ] The Supreme Court of Canada has told the legal profession and the judiciary in clear and unambiguous terms that “sentencing cannot be done in the dark”. [49] Lawyers have a legal duty “to amply justify” joint submissions with reference to all the relevant circumstances. [50] Judges should not have to seek out key material facts.

Crown prosecutors (and Defence Counsel) must be prepared to present them and to justify joint submissions. [ 63 ] In this case, I found several omissions from the Crown’s submissions to be troubling. For example, the Crown did not mention that Parliament has mandated the primacy of the objectives of denunciation and deterrence, both general and specific, to perpetrators of intimate partner violence such as Mr. Aklok; the Crown did not refer to the fundamental principle of sentencing, proportionality; the Crown did not mention Parliament’s direction in

section 718.04 that the victim’s vulnerability must be considered; the Crown did not know whether any of Mr. Aklok’s prior convictions involved an intimate partner; and the Crown did not demonstrate how the joint submission addressed the prevalence of intimate partner violence, as well as the harm done to the victim and community. [ 64 ] The joint submission endorsed by the Crown also failed adequately to address rehabilitation. Clearly, there was and continues to be a need to seek this 39-year-old male Inuk’s rehabilitation.

However, the joint submission only called for me to impose a short nine months of probation, little time for Mr. Aklok to wrestle with – under Court supervision – his lifelong issues of dysfunction and alcoholism. [ 65 ] Defence Counsel told me: When he’s released from custody, he will be returning to Kugluktuk although he understands this is a very difficult place for him to live. He’ll be looking to move again; he thinks probably to Calgary as it’s a bit healthier for him there … he doesn’t have the triggers from the trauma of his background that are presently the case in Kugluktuk. [51] [ 66 ] Mr.

Aklok thinks he will probably move back to Calgary where he struggled in the past to find full-time employment and shelter. Whether Mr. Aklok stays in Kugluktuk or moves to Calgary, he will require the long-term supervision and support of a lengthy probation order.

[ 67 ] The joint submission also did not address many of the aggravating factors present in this case. As I noted earlier, Parliament has mandated that courts and lawyers consider aggravating and mitigating factors. Aggravating factors work to increase sentences. Mitigating factors work to lessen sentences. [52] There are many aggravating factors in this case, only two of which were referred to by the Crown: 1. These matters involved intimate partner violence; [53] 2. Mr. Aklok had abused at least one intimate partner in the past; 3. Mr. Aklok’s violence toward his victim was serious; 4. Mr.

Aklok’s victim was a vulnerable female Inuk; [54] 5. Mr. Aklok assaulted his intimate partner again only 19 days after the first assault; 6. Mr. Aklok breached his bail condition not to have contact with his victim when he assaulted her the second time; 7. Mr. Aklok was extremely intoxicated during the second assault. He decided to drink knowing he could not handle it responsibly; [55] and 8. Mr. Aklok choked his victim during the second assault. [ 68 ] The eighth aggravating factor above underscores the concerns I had with the Crown’s position. The plea negotiations here resulted in the Crown permitting Mr.

Aklok to plead guilty to the lesser offence of common assault when the admitted facts clearly supported the original and more serious choking charge laid by the police. I would at least have expected the Crown to allege the choking to be an aggravating factor to the common assault. This failure by the Crown to allege the admitted choking as an aggravating factor minimised the extent of the violence, its impact on the victim, and Mr.

Aklok’s responsibility for his criminal actions. [ 69 ] The joint submission did nothing to help dispel the perception that our justice system devalues the lives of Inuit victims of crime. I am certain this omission would alarm and dismay all informed and reasonable Nunavummiut. [56] [ 70 ] The Crown properly noted the early guilty plea and the gap in Mr. Aklok’s criminal record in its submission. These are indeed two mitigating factors to be weighed in the sentencing balance. However, the joint submission placed too much weight on these two mitigating factors.

The integrity of the joint submission suffered due to the Crown’s incomplete grasp of the facts and its reliance on a file which did not contain all the material and necessary details. [ 71 ] A joint submission that does not appropriately address aggravating factors runs the real risk of reinforcing the perception, as described by Pauktuutit and the MMIWG Final Report, that there is little justice to be found for Inuit women in the criminal justice system.

Again, I turn to the MMIWG Final Report: The language used in the Canadian justice system, especially the language used in the Criminal Code and in criminal justice proceedings, minimizes the nature and severity of violent offences and serves to minimize the responsibility of the offender and the impact of the crime. [57] In my view, the overall joint submission in Mr.

Aklok’s case minimized the nature and severity of his violent offences and served to minimize his responsibility as well as the impact of the crimes on his victim. [58] [ 72 ] As I noted earlier, in L.P. , the Quebec Court of Appeal increased the sentence imposed by the trial judge from a provincial jail term to a federal penitentiary term.

In so doing, the court expressly gave meaning to Parliament’s direction that sentencing judges “shall give primary consideration to the objectives of denunciation and deterrence” in these cases. [59] [ 73 ] L.P. is a clear signal that the thinking of sentencing judges – and the lawyers who make sentencing recommendations – must evolve to conform to Parliament’s directions. In many cases of intimate partner violence, this will mean higher sentence

recommendations and higher sentences in Nunavut than were imposed in the past. [ 74 ] The Supreme Court of Canada discussed how courts may depart from previous precedent in a principled manner in R v Friesen , an April 2020 decision involving child sexual abuse: Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence. Sentencing ranges are not “straitjackets” but are instead “historical portraits” ( Lacasse , at para. 57 ).

Accordingly, as this court recognized in Lacasse , sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and society’s understanding of the severity of the harm arising from that offence increases (paras. 62-64 and 74). [60] [ 75 ] Parliament did not increase sentencing maximums for intimate partner violence. However, in s. 718.04 Parliament did give expression to our growing understanding of the severe impact violent crime has on Indigenous victims. In doing so, Parliament gave a clear direction to all justice system participants.

Going forward, we have a duty to reconsider the proportionality principle and how it should be applied in a way that is “consistent with the harm done to victims or to the community”. [61] This, too, is one of the lessons from L.P. 4 The Defence [ 76 ] I turn now to the Defence. Defence Counsel, in her brief submissions, referred in passing to denunciation, deterrence, and the aggravating effect of intimate partner violence on the sentence. Defence Counsel submitted that a criminal record and the social stigma of a conviction would act as deterrents.

However, Defence Counsel also submitted that “the victim was an intimate partner of [Mr. Aklok’s] at the time, not a long term partner”. [62] The length of a relationship in which intimate partner violence occurred is not a relevant factor. 5 The irony of Anthony-Cook [ 77 ] This is clearly a case where Mr.

Aklok ought to have been separated from society for a jail term proportionate to the seriousness of his two violent crimes against his intimate Indigenous partner and his high degree of responsibility. [63] That I was, as the judge responsible for the sentence, unable lawfully to resist this joint submission is the subject of the next

section of my decision. [ 78 ] The irony of Anthony-Cook is that it has been courts that have denied front-line judges the judicial discretion granted them by Parliament. [ 79 ] Thirty-five years ago, plea negotiations between Crown and Defence Counsel were not universally well regarded. [64] We now openly acknowledge that plea negotiations play an important and necessary role in our criminal justice system. [ 80 ] Canada’s criminal law is national in scope.

Unsurprisingly, in a country as large and diverse as Canada, different appeal courts over the years devised different approaches to joint submissions. [65] The legal landscape changed in 2016 with Anthony-Cook when the Supreme Court settled the test judges are to apply when considering joint submissions. [ 81 ] In Anthony-Cook , the Supreme Court established a “stringent” public interest test [66] to guide front-line judges when they consider a “contentious” joint submission.

At the very beginning of the decision, Moldaver J on behalf of the court restated and reinforced Parliament’s direction that “joint submissions on sentence are not sacrosanct. Trial judges may depart from them”. [67] [ 82 ] Two paragraphs later, the court expressed the new standardised rule going forward:

The test … is whether the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest. [68] [ 83 ] This indeed is a stringent test. In fact, the court went on later to raise the bar further.

Rejection [of a joint submission by a judge] denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

This is an undeniably high standard – and for good reasons …” [69] [ 84 ] Despite this “undeniably high standard”, the court returned in Anthony-Cook to their initial point, that joint submissions are not sacrosanct, by providing detailed guidelines for front-line judges who depart from them. These detailed guidelines seemed to suggest that the Supreme Court endorsed the view that front-line judges still retained at least some of the judicial discretion and responsibility bestowed upon them by Parliament.

However, appeal courts, including the Nunavut Court of Appeal, interpreted the public interest test very stringently indeed. 6 The “so unhinged” test [ 85 ] Appellate courts have not embraced the Supreme Court’s guidance for trial judges in Anthony-Cook . In accordance with appellate

interpretation of Anthony-Cook , front-line judges—to reject a joint submission—must now find find that the joint submission is so unhinged that the reasonable and informed person would conclude that the justice system has broken down. [70] The “so unhinged” test is all that remains of Anthony-Cook ’s guidelines to trial judges. [ 86 ] As noted above, Moldaver J wrote in Anthony-Cook that the “so unhinged” test “is an undeniably high standard”. In my respectful view, it is an impossible standard to apply.

I repeat and endorse the following comment by Gorman J of the Provincial Court of Newfoundland and Labrador in R v J.B. : It is hard to imagine any single sentencing submission ever having this effect and what do the words a “break down in the proper functioning of the criminal justice system” mean? [71] [ 87 ] Mr. Aklok’s case highlights the essential problems with the “so unhinged” test. First, the very term “so unhinged” implies a standard of negligence by counsel so extreme that I have never seen despite spending more than thirty years working in the criminal justice system.

Second, how can it be said that the justice system is not functioning “properly” and has “broken down” when Crown and Defence are represented by counsel in a routine court sitting presided over by an impartial judge? Despite the participation of counsel and the judge, the joint submission in this case failed to deliver justice. [ 88 ] A judge’s inability to impose a just and principled sentence constitutes a breakdown in the justice system. [ 89 ] This case is an example of the real-world effect that the “so unhinged” test can bring about.

Reasonable and informed Nunavummiut would conclude, as I have, that the justice system broke down in Mr. Aklok’s case. That breakdown ought to have permitted me to decline to implement the joint submission.

However, I felt constrained from rejecting the joint submission because two recent appellate decisions in Nunavut have expressly endorsed the “so unhinged” test. [72] It is indeed unfortunate that the Court of Appeal has not provided constructive guidance to front-line judges on how to square this circle. [ 90 ] In my view, a properly conducted joint submission must be based upon rigorous consideration by counsel of all the circumstances and sentencing guidelines relevant to the case.

In cases where it ought to be obvious that the joint submission must be justified amply, counsel must be prepared to do so in their submissions to the court. In an ideal world, judges would confidently rely on lawyers to conduct all sentencing – not just joint submissions – in the clear light of day and following thorough pre-negotiation preparation. We do

not live in an ideal world. [ 91 ] An independent judiciary is the last line of defence for everyone in our free and democratic society. As Parliament has entrusted judges with the ultimate responsibility for the sentences they impose, judges must be vigilant to ensure that justice is done. In Nunavut, at least, that vigilance may require judges to engage with counsel to ensure that all relevant circumstances and principles have been considered and appropriately applied in joint submissions. VIII.

CONCLUSION [ 92 ] Inuit women, and all Nunavummiut, deserve a justice system that meaningfully addresses gendered violence. It is troubling that our courts have not been given the tools, including fuller judicial sentencing discretion, to do so. [ 93 ] There is a need and a role for Parliament to reopen debate on this vitally important aspect of our criminal justice system. [ 94 ] Although I was troubled, I was bound to follow appellate direction, and I imposed the joint submission. Dated at the City of Iqaluit this 2nd day of October, 2020 ___________________ Justice P. Bychok Nunavut Court of Justice